FROM SCOTT CIRCUIT COURT HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 17-CI-00156
FOR APPELLANT: William D. Tingley Louisville, Kentucky
FOR APPELLEE: Ashley Larmour Georgetown, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; NICKELL AND L. THOMPSON,
THOMPSON, L., JUDGE:
Brannock appeals from two orders of the Scott Circuit Court.
The first order held that William Brannock did not owe any
child support arrearages because the parties modified their
child support agreement. The second order denied
Appellant's Kentucky Rules of Civil Procedure (CR) 59.05
motion and CR 60.02 motion. Finding no error, we affirm.
AND PROCEDURAL HISTORY
parties were divorced by a decree of dissolution of marriage
entered on January 26, 2010. Incorporated into their decree
was their marital settlement agreement dated December 29,
2009. The agreement stated that Appellee agreed to pay
Appellant $1, 000 per month in child support for their two
minor children. The agreement also stated that the agreement
could not be modified or altered unless done so in writing
and signed by both parties. After executing the settlement
agreement, but before the divorce decree was entered, the
parties attempted to reconcile and began cohabitating in a
house they purchased together.
cohabitation lasted for about six years, with the
parties' final date of separation being March 26, 2016.
During this six-year time period, Appellee did not pay child
support. According to testimony, he instead paid all of the
mortgage on the new house and debt incurred during the
cohabitation period. Appellant, on the other hand, paid for
the household and child-related expenses.
February of 2017, Appellee filed a motion seeking
modification of child support and requested that the court
declare he did not owe child support
arrearages. A child support wage withholding order was
entered on May 1, 2017, against Appellee. The order directed
the withholding of $1, 000 per month and named Appellant as
the child support recipient. Appellee then again moved to
modify his child support and requested the court declare that
he did not owe child support arrearages from the period of
cohabitation. In response, Appellant maintained that she was
entitled to child support during the cohabitation period,
which would amount to over $70, 000 in arrearages.
were filed, and a hearing was held regarding the child
support arrearage issue. During the hearing, Appellee testified
that he and Appellant agreed that he would pay the mortgage
and accrued debt and that Appellant would pay the household
and child-related expenses. Appellee indicated this
arrangement was in lieu of the child support set forth in the
marital settlement agreement. Appellee introduced into
evidence an email and text messages which memorialize and
confirm this arrangement. The email and text messages were
dated after the final separation of the parties in 2016.
Appellant was not asked any questions during the hearing
regarding the email, text messages, or alleged modification
of the child support agreement. There is also no affidavit in
the record regarding this issue. The only information is a
general denial of any agreement set forth in pre-and
9, 2018, the trial court entered an order regarding the child
support arrearage issue. Citing Whicker v. Whicker,
711 S.W.2d 857 (Ky. App. 1986), and Vanover v.
Vanover, No. 2002-CA-001177-MR, 2005 WL 500274 (Ky. App.
Mar. 4, 2005),  the trial court held that the parties
orally modified their child support agreement. The court also
held that Appellant should be estopped from recovering child
support arrearages because it would be unconscionable to
permit her to remain silent on the child support issue and
allow Appellee to pay the mortgage in lieu of child support,
but then allow her to recover a $70, 000 windfall once the
relationship ended. The court cited to Sparks v.
Trustguard Ins. Co., 389 S.W.3d 121 (Ky. App. 2012), and
Dixon v. Dixon, No. 2016-CA-001571-ME, 2017 WL
5013538 (Ky. App. Nov. 3, 2017), disc. rev. denied and
opinion ordered not published (Ky. Apr. 18, 2018), in
support of its holding.
August 8, 2018, Appellant filed a CR 60.02 motion asking that
the court vacate the July 9, 2018 order because she did not
receive a copy of it. Appellant requested that the court
enter a new order and ensure the clerk mailed counsel a copy.
The implication of this motion was to allow Appellant to
timely file a CR 59.05 motion to alter, amend, or vacate.
Because Appellant did not receive notice of the July order,
she was unable to file a motion to alter, amend, or vacate
within the ten-day timeframe required by the rule.
on August 8, 2018, Appellant filed a motion pursuant to CR
59.05 and CR 52.02. She requested that the trial court make
additional findings and argued that the court erred in
holding that Appellee did not owe past child support.
Appellant also filed a notice of appeal and later moved for
the Court of Appeals to hold the appeal in abeyance pending
the outcome of the trial court's ruling on her motions.
September 4, 2018, the trial court entered two orders. One
order denied Appellant's CR 60.02 and CR 59.05 motions.
The other order was an amended order regarding the child
support arrearage issue which changed a few clerical errors
brought to the court's attention.
September 10, 2018, Appellant filed an amended notice of
appeal. The new notice of appeal listed the amended order and
order denying her post-hearing motions as the basis of the
appeal. This appeal followed.
first argument on appeal is that the trial court erred in
denying her CR 60.02 motion because the clerk failed to mail
a copy of the July 2018 arrearage order to her counsel;
therefore, she was unable to timely file her CR 59.05 and CR
52.02 motion. Even though Appellant makes this argument, she
also asks that we decline to review it. The trial court
denied Appellant's CR 60.02 motion and declined to take
under submission her CR 59.05 and CR 52.02 motion; however,
Appellant indicates that the trial court's September 4,
2018 amended order regarding the child support arrearages did
take into account her motions and effectively granted her
post-hearing motions. Because Appellant asks us to take no
action as to this issue, we will move on.
second argument on appeal is that the trial court erred when
it failed to enforce the terms of the parties' marital
settlement agreement, which required all modifications to be
in writing and signed by the parties. Appellant cites to
Jaburg v. Jaburg, 558 S.W.3d 11 (Ky. App. 2018),
which holds that a court must adhere to the terms of a
settlement agreement if it contains a clause which says that
the agreement may not be modified unless in writing.
Appellant argues that the settlement agreement executed
between the parties in December of 2009 has such a clause;
therefore, the child support payments could not be modified
orally as between the parties or by the trial court.
We are unable to fully review this issue. CR 52.04 states:
A final judgment shall not be reversed or remanded because of
the failure of the trial court to make a finding of fact on
an issue essential to the judgment unless such failure is
brought to the attention of the trial court by a written
request for a finding on that issue or by a motion pursuant
to Rule 52.02.
the trial court did not specifically rule as to what effect
the modification clause in the agreement had on the child
support arrearage issue. Also, although Appellant filed a CR
52.02 motion seeking additional findings of fact, she did not
request additional findings as to this issue. ...